SAN FRANCISCO -- This week's invalidation of California's same-sex marriage ban is a huge victory, but only one step in a legal journey that probably will end with a battle for the support of every U.S. Supreme Court justice, one of the attorneys in the case said Thursday.
David Boies, who represented the plaintiffs who challenged the state Constitution's ban as enacted by Proposition 8, told a sympathetic crowd at the Commonwealth Club of California that he believes the American system of justice worked well this week.
"The concept of equality is baked into the American soul. We believe in it, everyone believes in it," he said. But he added that some people remain willing to exclude certain groups from certain rights, and the courts are a crucial bulwark against such discrimination.
"Gradually, we are coming to understand that all people, in the words of our Declaration of Independence, are created equal, that all people have the same inalienable rights, and that our Constitution is designed to protect that," he said.
Boies -- who gained fame for serving as special counsel to the U.S. Department of Justice in the Microsoft antitrust litigation, and for having represented Vice President Al Gore in the Bush v. Gore case that settled the 2000 presidential election -- is representing the plaintiffs in this case along with former U.S. Solicitor General Ted Olson.
Moderator Pamela Karlan, a Stanford Law School professor, likened Boies
U.S. District Judge Vaughn Walker, of San Francisco, on Wednesday deemed California's same-sex marriage ban, enacted in November 2008, to be in violation of the U.S. Constitution's 14th Amendment guarantees of equal protection and due process of law. He temporarily stayed his ruling for several days so the parties can argue whether it should remain on hold as the case moves to the 9th U.S. Circuit Court of Appeals.
Prop. 8's supporters filed their appeal Thursday, and the case is likely to end up before the U.S. Supreme Court.
Officials in several counties -- including Alameda and Contra Costa -- have said they are ready to start issuing marriage licenses to same-sex couples should the stay be lifted.
Boies said Walker will decide next week whether to maintain the stay; judges often hesitate to do so after they have found people's fundamental rights are being infringed.
He said he believes his side won in the trial court because "religion does not have a place in American legislation, and that has been true since the First Amendment to the Constitution was passed."
"The other side doesn't have any precedent, doesn't have any facts, doesn't really have any experts," he said. "It has a bumper sticker, and the bumper sticker says 'Marriage is only between a man and a woman.' "